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Guardianship for Plaintiff Without Home State Who Has Disappeared

Posted by Ted A. Schmidt | Aug 26, 2015 | 0 Comments

Woestman v. Russell, 718 Ariz. Adv. Rep. 26 (App. Div. I, July 28, 2015) (J.Howe)


Plaintiff Bryan, a mentally incompetent individual, was injured in a car accident and sued the defendant. Shortly thereafter his attorney had a guardian ad litem [GAL] appointed for him.  Thereafter the GAL could not find the plaintiff so he sought to have a conservator appointed to represent plaintiff. The defendant objected claiming the plaintiff did not have a significant connection with Arizona as required by A.R.S. §14-12203 and the court lacked  sufficient grounds under A.R.S. §14-5401(A)(2) to make the appointment. The trial court made the appointment and the defendant then brought this special action.  Jurisdiction was accepted by the Arizona Court of Appeals which then denied the relief sought by defendant.

In Arizona, the court may exercise jurisdiction to appoint a conservator for a person if Arizona is that person's “home state” or if the person has no “home state.”

"Home state" means the state where the person is physically present for 6 consecutive months preceding the filing of the petition for conservatorship or the state where the person was present for 6 consecutive months ending within 6 months of filing the petition.  A.R.S. §14-12201(A)(2).

In the absence of a home state the place where the person has a significant connection has jurisdiction to appoint a conservator. A.R.S. §14-12201(A)(3). 

First, the record shows that Bryan has no "home state." He has not been physically present in any state in the six months preceding his GAL's petition to appoint him a conservator. As [defendant] acknowledges, Bryan has claimed to be from Montana, provided police addresses in three different states, and has a criminal history involving offenses in six different states. Second, the record shows that Bryan has a significant connection to Arizona. Bryan was involved in a car accident here, retained an attorney here, and has a sister that resides in a county here. Accordingly, the trial court had jurisdiction to appoint Bryan a conservator.

Finally, as required under A.R.S. §14-5401(A)(2), the court found plaintiff Bryan had in fact disappeared. While “disappeared” is not defined in the statute the common dictionary definition of the term.

Bryan is a mentally ill homeless person who left Arizona after he recovered from his injuries and has not been back since September 2013. Under these facts, Bryan is indeed "removed from sight"; he has "vanished," "ceased to appear or to be perceived," and "become lost." To use the dictionary's example, he has "disappeared without a trace." The evidence satisfied the statute.

About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".


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